Proceeding pursuant to CPLR Article 78 challenging the August 24, 2009 determination of the respondent Enforcement Committee (the "Committee") of the respondent Adirondack Park Agency (APA) which required petitioners to remove two covered porches from their residences [*2]totaling 297� square feet, remove the roof and supporting structures from an U-shaped dock, connect to a recently constructed common sewage system by December 31, 2009, record a deed restriction limiting petitioners' single family dwelling to no more than three bedrooms, and pay a $5,000 civil penalty.

Petitioners are the owners of a .27 acre waterfront lot on the shore of Lake George in the town of Putnam, Washington County (the "property"). The property is part of a 23-lot subdivision authorized by APA Permits No. 82-1 and 82-1A ("the permits") and known as the Royal Anchorage Estates Subdivision (Royal). Under the permits, approval was given for twenty-three single family dwellings in the subdivision with each dwelling to consist of "one or two stories, and 1500 square feet of floor space". Certain existing structures on some of the lots in the subdivision, including the property, were to be removed and replaced by new structures meeting the requirements of the permit. With regard to the petitioners' property, the new structure was to be located no closer to the mean high water mark of Lake George than was the existing structure being replaced. In addition, the project sponsor was required to submit to the APA for approval "final engineering and construction details for the common sewage disposal system", to which each lot was to connect once the system was completed and approved. Although the permits prohibited the construction of any additional boathouses, each authorized shoreline lot was permitted to build not more than one uncovered dock. No condition of the permits limited the number of bedrooms, bathrooms, porches or decks in or as part of any dwelling, nor was there any language indicating that a porch or deck was to be included as part of the "1500 square feet of floor space".

During the years 1987-1988, petitioners built a single family dwelling consisting of 2,040 square feet and an attached garage. The home is equipped with three bedrooms, along with a study, a storage room, and a basement. Because the subdivision had no common sewer system, petitioners installed an individual wastewater treatment system on their property consisting of holding and septic tanks. Petitioners' home is one of but two residential structures constructed in the Royal subdivision as of the commencement of this proceeding.

By a notice of apparent violation dated August 22, 1989, the APA commenced an administrative enforcement action against petitioners charging, inter alia, that the residence exceeded the 1,500 square feet of floor space limitation in the permit. The matter came before the Committee at its October 19, 1989 meeting. After hearing from APA staff and representatives for the petitioners, the Committee determined that the structure exceeded the floor space requirement. However, the Committee also decided that the basement did not consist of "living space" and thus omitted the basement area from the floor space calculations. The Committee agreed to resolve the violation without referral to the attorney general and without a civil penalty if the petitioners brought the structure into compliance so as to not exceed the 1,500 square foot floor space limitation and submitted a "planting plan to screen the structure from view from the water". Petitioners appealed to the full agency in accordance with then-existing regulations and the matter was scheduled to be heard by the APA at its December 14-15, 1989 [*3]meeting. No final action on the appeal was ever taken by the APA ^[FN1].

In 1999, the petitioners added two covered porches to their residence. One porch is approximately 105 square feet, is open on three sides, and is connected to the entrance to the residence on the opposite side of the building from the shoreline. This porch essentially serves as a covered entrance to the residence from the driveway. The second porch, containing 192 square feet, is situated on the southwesterly side of the dwelling, is supported by posts, covered by a roof and screened-in. A retaining wall and a significant expanse of lawn and vegetation exist between this porch and Lake George.

Petitioners also constructed an U-shaped dock ^[FN2] in 2006, which was covered, including the area in the middle where boats would be secured, by a roof. Petitioners obtained a permit for the construction of this improvement from the Lake George Regional Planning Board. This permit was subject to the requirements of any other jurisdiction, including the APA. No permit was obtained by petitioners from the APA. A review of the design plans for this improvement reveals that the structure is referred to as a "boathouse"^[FN3]. However, petitioners assert that the same is only a covered dock and thus not in violation of the permits' requirement that no additional boathouse be constructed.

On October 2, 2007, the APA issued Project Permit No. 2003-32 to Royal and the town of Putnam Sewer District No. 1 for the construction of a community wastewater treatment system for the subdivision. The permit specifically stated that it was binding on "all present and future owners of the project site" and required that all single family dwellings in the subdivision be connected to that system, and that "[a]ny new single family dwellings connected to the community waste water treatment system shall not have more than three bedrooms or three total [*4]rooms that could be used as bedrooms, shall not have more than 1,500 square feet of floor space and shall not exceed two stories". With regard to "floor space", the permit went on to state that the APA "measures square footage of floor space from the exterior of the structure and includes all attached porches, decks and accessory structures (e.g., garages)". There is no evidence in the record that petitioners were parties to or on notice of the permitting process. Construction of the community wastewater system was completed in the spring of 2009, and approved for operation on June 19, 2009.

On May 29, 2009, the APA issued a notice of apparent violation alleging four separate violations: (1) the single family dwelling exceeded 1,500 square feet of floor space; (2) the single family dwelling was constructed prior to approval of the common sewage disposal system for the subdivision; (3) petitioners constructed a boat house in violation of the permit; and (4) petitioners constructed a catamaran ramp on an adjoining parcel owned by petitioner Patricia Zelanis within the shoreline setback of Lake George. In the notice of apparent violation, APA staff requested a Committee determination of violations and sought removal of the boat house and catamaran ramp, reduction of petitioners' single family dwelling to comply with the 1,500 square foot requirement, and payment of a civil penalty of up to $500 per day for continued violations.

The matter came before the Committee on August 13, 2009. After hearing from APA staff and counsel for petitioners, and reviewing various documents submitted by both parties, the Committee determined that petitioners had in fact violated the permits as alleged by APA staff in the notice of apparent violations, and in doing so applied the definitions in paragraphs (c), (j) and (ah) of 9 NYCRR §570.3. The Committee directed petitioners to: (1) remove the two covered porches as well as the roof and supporting structures of the waterfront dock or boathouse "so that all that remains is the U-shaped dock authorized by the Lake George Park Commission Order on consent"; (2) connect to the common sewage disposal system no later than December 31, 2009; (3) record a deed restricting the use of the single family dwelling "to no more than three bedrooms"; (4) pay a $5,000 civil penalty "to resolve [petitioners'] violations". The Committee also agreed to allow the single family dwelling to consist of 2,040 square feet exclusive of the attached garage. No determination was made as to the catamaran ramp on the adjoining parcel owned by petitioner Patricia Zelanis due to the ramp having been removed prior to the hearing.

Petitioners commenced the instant Article 78 proceeding by the filing of a notice of petition and petition ^[FN4] on October 21, 2009 together with an affidavit ^[FN5] from petitioner Patricia Zelanis sworn to on October 17, 2009. Respondents served an answer with counterclaim and a [*5]return ^[FN6], which was filed on December 23, 2009, along with an affidavit of Paul Van Cott, Esq., an associate attorney with the APA, sworn to December 17, 2009. In their counterclaim, the respondents seek a judgment compelling petitioners to remedy "their residential and shoreline structures as specified in the Determination and by paying the civil penalty of $5,000 forthwith". Petitioners' counsel thereafter served a reply affirmation dated January 7, 2010, along with a reply to the counterclaim. Oral argument took place on January 8, 2010. During the course of argument, respondents requested permission to serve a sur-reply no later than January 31, 2010. This request was granted and the sur-reply ^[FN7] was filed on or about January 29, 2010 ^[FN8].

The petitioners challenge the respondents' determination that the two porches violate the permits, claiming that the porches do not constitute either "living space" or "floor space" for purposes of the 1,500 square foot limitation in the permits. The permits here limit the size of each dwelling to "1500 square feet of floor space". The Committee concluded that the Petitioners were in violation because they increased "the floor space of their home by 297 square feet in size" by adding the two covered porches. In making that determination, the Committee stated, "For the purposes of measuring floor space', the definition of that term in 9 NYCRR §570.3(ag) [sic] shall apply"^[FN9]. Thus, in determining that the porches must be included in measuring "floor space", the respondents applied the definition of "[s]quare feet of floor space" (9 NYCRR §570.1[ah])^[FN10] adopted more than nine years after the porches were constructed. [*6]

Respondents' application of 9 NYCRR §570.3(ah) violates the well-established "law of this state that nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance" (People v. Miller, 304 NY 105, 107, 106 NE2d 34, 35). The petitioners established a vested interest in the porches since construction was completed more than ten years prior to the commencement of the enforcement proceeding (see Glacial Aggregates LLC v. Town of Yorkshire, 14 NY3d 127, 897 NYS2d 677, 924 NE2d 785). The determination that petitioners violated the permits and 9 NYCRR §570.3(ah) by constructing the two covered porches must therefore be, and hereby is, annulled.

Although respondents now contend that "Agency practice has included a definition of square feet of floor space' that is consistent with the regulatory definition promulgated in 2008 at 9 NYCRR § 570.3(ah)"^[FN11], there is no mention by the Committee in its challenged determination of any such past practice. "It has . . . long been the rule that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination (see, Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758-759, 570 NYS2d 474, 573 NE2d 562; Matter of Aronsky v. Board of Educ., 75 NY2d 997, 1000-1001, 557 NYS2d 267, 556 NE2d 1074)" (Scanlan v. Buffalo Public School System, 90 NY2d 662, 678, 665 NYS2d 51, 57-58, 687 NE2d 1334, 1340-1341). Since it is clear that prior to December 2008 neither the APA Act (Executive Law §§800 et seq.) nor the regulations promulgated by the APA (9 NYCRR Subtitle Q) defined "floor space", this Court "may not sustain the determination by substituting a more appropriate basis now asserted by the" respondents (Aronsky v. Board of Educ., Community School Dist. No. 22 of City of New York, 75 NY2d 997, 1000-1001, 557 NYS2d 267, 269, 556 NE2d 1074, 107).

Even if this Court were to consider the past practice claim, it would fail. An administrative agency may not regulate under the guise of interpretation (see Christensen v. Harris County, 529 US 576, 588, 120 SCt 1655, 146 LEd2d 621 [2000] [an agency cannot "under the guise of interpreting a regulation . . . create de facto a new regulation"]), and "past agency practice is not binding precedent" (New York Public Interest Research Group, Inc. v. Johnson, 427 F3d 172, 182). An unwritten agency practice, no matter how long employed, does not rise to the level of written opinion materials such as policy statements, agency manuals, interpretive rules or enforcement guidelines,

"all of which lack the force of law [and] do not warrant Chevron ^[FN12]-style deference. See, e.g., Reno v. Koray, 515 US 50, 61, 115 SCt 2021, 132 LEd2d 46 (1995) (internal agency guideline, which is not subject to the rigors of the [*7]Administrative Procedur[e] Act, including public notice and comment," entitled only to "some deference' (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 US 244, 256-258, 111 SCt 1227, 113 LEd2d 274 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm'n, 499 US 144, 157, 111 SCt 1171, 113 LEd2d 117 (1991) (interpretative rules and enforcement guidelines are not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers'). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed.1994). Instead, interpretations contained in formats such as opinion letters are entitled to respect' under our decision in Skidmore v. Swift & Co., 323 US 134, 140, 65 SCt 161, 89 LEd 124 (1944), but only to the extent that those interpretations have the power to persuade,' ibid. See Arabian American Oil Co., supra , at 256-258, 111 SCt 1227." [footnote 12 added] (Christensen v. Harris County, supra , 529 US at 587, 120 SCt at1662-1663, 146 LEd2d 621).

The record also does not support the respondents' assertion that its past practice and the 2008 regulation are consistent. Rather, the record reveals that the concept of "floor space", as applied by the respondents in the context of building size, has been variable, not consistent. In support of their claim of consistency, the respondents cite to portions of the August 2, 1989 affidavit of Richard Terry (Exhibit C to the petition) in the case of Ryan v. Adirondack Park Agency, 186 AD2d 922, 589 NYS2d 121. In that affidavit, Mr. Terry avers that the unfinished basement of the Ryan dwelling was included in the calculation of "floor space" for purposes of the 1500 square foot limitation (¶¶10-11). In arriving at that conclusion, Mr. Terry stated that the basement was "approximately 15 feet high with sufficient interior space for use as a garage and for storage" and was "fully exposed on the lakeside of the dwelling". However, 9 NYCRR §570.3(ah) only includes a finished basement ("one which contains walls, flooring, and ceiling suitable for use as a bedroom, living room, playroom or office area, or if a non-residential use, suitable for storage, work area, or office"). Consideration of a basement's potential use as a garage or its visible exposure from the vantage point of nearby lakes or waterways is not contemplated by the 2008 regulation.

Curiously, the 2008 regulation defining "floor space" does not specifically mention an attached garage yet the 2003 permit authorizing construction of the sewage disposal system contains language to the effect that garages are included in the measurement of "floor space"^[FN13]. Arguably, an attached garage could be included under the catchall language of "all other attached components with a roof or cover", a result consistent with Mr. Terry's analysis in Ryan. Yet, not only did the respondents fail to specifically mention an attached garage in the regulation, notwithstanding their past practice in Ryan and the ease with which words to that effect could have been employed when drafting the regulation, but they also excluded the area of petitioners' [*8]attached garage from their direction that the petitioners' home consist of 2,040 square feet after removal of the porches while including the basement in Ryan because it could be used as a garage.

The inconsistency of respondents' past practice is also evidenced by the present case. In the 1989 violation proceeding, the respondents determined that the petitioners' unfinished basement was not included in the 1500 square foot limitation because "the basement, having only small windows and no interior access to the dwelling, is not living space". Certainly, the petitioners' basement was usable for storage despite small windows and no interior access ^[FN14]. This differs from the present regulation and from the respondents' purported past practice in Ryan in that all unfinished basements are now excluded while in 1989, at least as to the petitioners, the criteria for inclusion also apparently required interior access to the rest of the dwelling as well as larger windows. Moreover, nothing has been submitted by the respondents establishing that the past agency practice of calculating "floor space" or "living space" included porches, screened or open, or covered entryways.

"[W]hen an agency determines to alter its prior stated course it must set forth its reasons for doing so. Unless such an explanation is furnished, a reviewing court will be unable to determine whether the agency has changed its prior interpretation of the law for valid reasons, or has simply overlooked or ignored its prior decision (Kramer, op. cit., at 68-70). Absent such an explanation, failure to conform to agency precedent will, therefore, require reversal on the law as arbitrary, even though there is in the record substantial evidence to support the determination made [citations omitted]" (Matter of Charles A. Field Delivery Service, Inc., 66 NY2d 516, 520, 498 NYS2d 111, 115, 488 NE2d 1223, 1227). No explanations having been furnished by the respondents for the varying determinations of what constitutes "floor space", their determination here, to the extent it is based upon past practice, is arbitrary.

The petitioners' contention that the U-shaped structure authorized by the Lake George Regional Planning Board is merely a covered dock rather than a boathouse is of no consequence. First, the permits clearly state that "[t]here shall be not [sic] additional boathouses and not more than one uncovered dock constructed on each authorized shoreline lot herein"^[FN15] (emphasis added). So even if the structure is a dock, the permits require that it be uncovered. Second, the photographs of the structure, as well as the 2008 survey map showing the "Boathouse Profile", clearly depict a roof extending over the area in which boats are to be moored and stored rather than over the dock itself, and a moored boat is depicted in the photographs. This structure thus appears to be a boathouse under 9 NYCRR §570.3(c). [*9]

Therefore, the Committee's determination that this structure violates the permits is justified, and the petitioners' challenge is without merit and is denied. The respondents' counterclaim is granted to the extent that petitioners are compelled to remedy this structure, within ninety days of the entry of judgment herein, as directed in the August 24, 2009 determination.

The petitioners challenge the respondents' determination that they violated the permits by failing to connect to the common sewage disposal system after that system was approved for operation just two months earlier on June 19, 2009, and the direction that they connect to that system no later than December 31, 2009. It is undisputed that the permits refer to a common sewage system, "the final engineering and construction details" for which were "to be submitted for final approval prior to undertaking the project"^[FN16]. However, for reasons not explained in the record, the final approval of those details was not issued until October 2007. While the 1982 permits contain no language specifically requiring each dwelling lot in the subdivision to connect to the common sewage disposal system ^[FN17], the October 2007 permit issued to the subdivision developer and the town of Putnam does contain such a requirement ^[FN18]. However, the 2003 permit contains no language amending or modifying the 1982 permits. [*10]

The respondents concede that at the time the dwelling was constructed there was no common sewage disposal system for the subdivision, and such a system was not in existence and operational until June 2009, some 21 years later. Petitioners were also allowed to construct a septic system for their home with impunity as the respondents' 1989 violation proceeding did not allege any violation of the permits based upon that system ^[FN19]. Furthermore, the respondents acknowledge that in directing the petitioners to connect to the common sewage disposal system on or before December 31, 2009 they did not consider any geologic limitations or problems, including those imposed by an Adirondack winter beginning in November, or the attendant financial consequences, that petitioners' might encounter in complying therewith. The record also fails to include information indicating that the respondents considered those problems and consequences to the individual lot owners when approving the final sewage disposal system plans, or that the petitioners and other property owners in the subdivision were on notice of the respondents' proceedings related to approval of that system. Also in question is the respondents' jurisdiction to enforce Permit 2003-32, approving the common sewage disposal system, against the petitioners or any other individual property owner in the subdivision, or whether recourse is against the town sewer district which operates and maintains the system under that permit.

The petitioners' challenge to the respondents' determination that they connect to the common sewage system is granted to the extent that the matter is remitted to the respondents for reconsideration in accordance with this decision. Otherwise, the challenge is denied.

The May 29, 2009 notice of apparent violation does not allege a violation of any term or condition of the permits limiting the number of bedrooms in a dwelling. "The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged. (Matter of Ruffalo, 390 US 544, 88 SCt 1222, 20 LEd2d 117; Matter of Shapiro v. Board of Regents, 16 NY2d 783, 262 NYS2d 503, 209 NE2d 821; Matter of Hecht v. Monaghan, 307 NY 461, 473-474, 121 NE2d 421, 427-428; Cole v. Arkansas, 333 US 196, 68 SCt 514, 92 LEd 644; Lloyd Sabaudo Societa v. Elting, 287 US 329, 339-340, 53 SCt 167, 77 LEd 341.)" (Murray v. Murphy, 24 NY2d 150, 157, 299 NYS2d 175, 181, 247 NE2d 143, 147). The respondents are required to provide the petitioners with notice of, among other things, "the material facts and documentary evidence, and the provisions of law upon which the notice is based" (9 NYCRR §581-2.6[b]; see also State Administrative Procedure Act §301[2]^[FN20]). [*11]For this reason alone, the failure of the notice of apparent violation to include an allegation of a violation based upon the number of bedrooms requires that this Court grant the petition to annul this determination and directive.

Also, the permits contain no three-bedroom per dwelling limitation. The only reference in the permits to a dwelling having three bedrooms is the finding of fact relative to the proposed design of the common septic system, namely, that "[b]ased upon DEC standards, the design flow is 800 gallons per day (for twenty single family dwelling [sic] with three bedrooms each) and the required leach bed area is 60 x 100 feet"^[FN21]. Notably, the permits provide for subdivision of 23 single family dwelling lots ^[FN22], not 20. It is not claimed by respondents that every home in the subdivision was expected to have exactly three bedrooms or that it was not contemplated that some dwellings would have less than three bedrooms. Had the respondents intended to limit each dwelling to three bedrooms, it would have so provided in the permits and would not have approved 23 three-bedroom dwellings serviced by a common sewage disposal system designed for only 20 three-bedroom homes. Although the 2003 permit issued to the developer and the town of Putnam for the common sewage disposal system provides that "[a]ny new single family dwellings connected to the community wastewater treatment system shall not have more than three bedrooms or three total rooms that could be used as bedrooms . . ."^[FN23] (emphasis added), there is nothing in this permit either requiring the existing dwellings to be so limited or modifying the 1982 permits. The respondents' challenged determination is arbitrary and capricious.

Finally, the respondents' lack legal authority to command the petitioners to record a deed limiting the number of bedrooms in the residence to three bedrooms. An administrative agency may not amend a permit through the guise of enforcement especially when resort may be had to available procedures to amend or modify the permit. Here, the respondents have the power to modify a permit (Executive Law §809[8][a]) for "activities exceeding the scope of the project or varying the project as described in the permit" (9 NYCRR §581-3.1[b]), and the Committee can direct the executive director to institute proceedings for that purpose (9 NYCRR §581-3.2[a]). Also, the respondents' enforcement remedies for a violation of the Adirondack Park Agency Act (Executive Law §§800 et seq.), the respondents' regulations, or any order or permit, are limited by statute "to a civil penalty of not more than five hundred dollars for each day or part thereof during which such violation continues" (Executive Law §813[1]) and/or "an action or proceeding to prevent, restrain, enjoin, correct or abate any violation of, or to enforce" (Executive Law §813[2]) such Act, regulations, order or permit. In either case, the action or proceeding must be [*12]brought by the attorney general in the name of the agency. No authority to direct a party to execute or record a deed is vested in the respondents by statute or regulation.

For the foregoing reasons, the determination of the respondents directing the petitioners to execute and record a deed limiting the use of their property to three bedrooms is annulled.

In light of the foregoing, the petitioners' challenge to the $5,000 civil penalty as excessive is granted since it cannot be determined how much of the total penalty was assessed by the respondents for each violation. The issue of an appropriate penalty is thus remitted to the respondents for a determination in accordance with this decision.

Counsel for the petitioners shall submit a judgment on notice. All papers are returned herewith to the clerk for filing.

ENTER

_______________________________________

Richard B. Meyer

J.S.C. (Acting)